Citation Nr: 0706347
Decision Date: 03/05/07 Archive Date: 03/13/07
DOCKET NO. 95-18 034 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
(The issues of entitlement to compensable evaluations for the
residuals of frostbite of the right and left feet prior to
April 9, 2002, and evaluations in excess of 10 percent for
the residuals of frostbite of the right and left feet after
April 9, 2002, were previously remanded for additional
development and have not been returned for final appellate
review.)
WITNESS AT HEARING ON APPEAL
Appellant, spouse, and K.L.
ATTORNEY FOR THE BOARD
T. L. Douglas, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
August 1979 to May 1989.
This matter comes before the Board of Veterans' Appeals
(Board) by order of the United States Court of Appeals for
Veterans Claims (hereinafter "the Court") on September 29,
2006, which vacated, in pertinent part, a June 2003 Board
decision and remanded the case for additional development.
The issue initially arose from an April 2001 rating decision
by the Winston-Salem, North Carolina, Regional Office (RO) of
the Department of Veterans Affairs (VA).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
In its September 2006 decision the Court found that the Board
erred by narrowly interpreting and applying the requirement
of "credible supporting evidence" of an in-service stressor
to mean that anyone submitting a statement in support of the
claim must have personally witnessed the stressor. It was
noted that the record demonstrated T.E.W. was in a position
of having specialized knowledge of the event claimed as a
stressor because he was present in the Tactical Operations
Center where notice of the explosion was reported. The case
was remanded to allow the Board to apply the relevant law and
to make a determination whether the specialized knowledge of
T.E.W. is credible evidence of the veteran's alleged stressor
to support his claim. The Board's determinations as to the
veteran's other claimed stressor events were undisturbed by
the Court.
The pertinent matter remaining in dispute involves the
veteran's claim that he has PTSD as a result of an artillery
explosion which threw him into a snow bank where he lay
unconscious for several hours causing severe frostbite of the
feet. According to the veteran, he was rendered unconscious
and later woke up in a military hospital where he spent
approximately one week recovering from his injuries. In
correspondence dated April 2001 T.E.W. stated that the
veteran had been "medievaced" after an incident in the
field and that he had observed him in his room, laid up, with
his feet elevated. In correspondence dated in September 2002
T.E.W. noted that "[a]s a result of an explosion his feet
were swollen and he was in great pain so he couldn't be
moved." He also noted that while he was not on the gun line
at the time of the explosion he was notified of it because he
worked in the Tactical Operations Center. Service records
were submitted demonstrating T.E.W. had active service
including over 19 years as a Tacfire Operations Specialist.
The veteran's service medical records show that on January
26, 1983, he was ambulatory upon arrival to the emergency
room with complaints of frostbite to the feet after having
been outside for five straight days. There were no other
reported complaints or symptoms and no reports of his having
been involved in an explosion or having been unconscious for
any period of time. The examiner's assessment was cold feet
and the treatment plan was 24 hours of bed rest. A January
27, 1983, report noted the veteran had been placed on 24
hours to quarters, but that he complained he had gotten no
relief. He stated his feet felt cold and hurt to the touch,
but he reported no other symptoms. A diagnosis of first
degree frostbite was provided. A January 28, 1983, health
clinic report indicated the veteran came in at 2:00 AM with
complaints that he could not sleep because of pain. The
diagnosis was status post first degree frostbite. A January
31, 1983, report noted the veteran had been previously seen
and given 24 hours to quarters on both occasions. The
examiner indicated his frostbite was improving. Records are
negative for any complaints or treatment related to injuries
incurred as a result of an artillery explosion.
In correspondence dated in February 2001 the United States
Armed Services Center for Research of Unit Records indicated
that the U.S. Army Safety Center and Army Criminal
Investigation Command had no records concerning the artillery
accident described by the veteran and that the U.S. Army
Freedom of Information Act Office and Army Military History
Institute had no records for the 2nd Battalion, 83rd Field
Artillery (the veteran's reported unit) for 1982 or 1983.
The Board finds, based upon the available evidence, that the
statements of the veteran and T.E.W. are sufficient to verify
only that the veteran was in the near vicinity of an
artillery range explosion and that he subsequently received
treatment for injuries to the feet. There is no present
evidence to dispute the statement of T.E.W. indicating he was
in a position to have obtained specialized knowledge of the
dynamics of an artillery explosion. T.E.W. admits to not
being in a position to visually observe that the veteran was
on the gun line. He states that he did subsequently witness
the veteran in his room because of injuries to his feet.
T.E.W. is not competent, however, to provide an opinion as to
a causal medical relationship between the claimed explosion
and any injuries to the veteran's feet.
Although the Court noted the statement of T.E.W. indicated he
had personally observed the veteran in the "hospital," the
correspondence of record states only that he observed him in
his "room" where his meals were brought to him. In light
of the service medical evidence showing the veteran was
treated with bed rest in his quarters the Board finds these
statements cannot be accepted as verification of the
veteran's claim that he had a period of in-patient hospital
treatment as a result of any more severe injuries. While the
medical evidence of record includes opinions relating PTSD to
claimed stressor events in service, these opinions do not
indicate that the stressor as presently verified is
sufficient to support the diagnosis of PTSD. As the
veteran's claimed stressor has been partially verified,
additional development is required prior to appellate review.
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). A review of the
record shows the veteran was notified of the VCAA duties to
assist and of the information and evidence necessary to
substantiate his claim by correspondence dated in March and
April 2001.
The Court, in Dingess v. Nicholson, 19 Vet. App. 473 (2006),
held that the VCAA notice requirements applied to all
elements of a claim. It was further noted that regarding the
disability-rating element, in order to comply with section
5103(a), VA must notify the claimant of any information, and
any medical or lay evidence, not previously provided, that is
necessary to establish a disability rating for each of the
disabilities contemplated by the claim and allowed under law
and regulation. Therefore, the Board finds appropriate
action should be taken to ensure adequate VCAA notice as to
all elements of the claim is provided.
The revised VCAA duty to assist requires that VA make
reasonable efforts to assist the claimant in obtaining
evidence necessary to substantiate a claim and in claims for
disability compensation requires that VA provide medical
examinations or obtain medical opinions when necessary for an
adequate decision. See 38 C.F.R. § 3.159 (2006).
For PTSD claims VA law provides that service connection
"requires medical evidence diagnosing the condition in
accordance with § 4.125(a) of this chapter; a link,
established by medical evidence, between current symptoms and
an in-service stressor; and credible supporting evidence that
the claimed in-service stressor occurred. . . ." 38 C.F.R.
§ 3.304(f) (2006). Section 4.125(a) of 38 C.F.R.
incorporates the 4th edition of the American Psychiatric
Association's Diagnostic and Statistical Manual for Mental
Disorders (DSM-IV) as the governing criteria for diagnosing
PTSD.
In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court held
that VA had adopted the 4th edition of the DSM-IV and noted
that the major effect was that the criteria changed from an
objective "would evoke ... in almost anyone" standard in
assessing whether a stressor is sufficient to trigger PTSD to
a subjective standard requiring exposure to a traumatic event
and response involving intense fear, helplessness, or horror.
The Court further held the sufficiency of a stressor was now
a clinical determination for an examining mental health
professional. Id. at 140, 141.
In Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court
held that a veteran need not corroborate his actual physical
proximity to (or firsthand experience with) and personal
participation in rocket attacks while stationed in Vietnam.
See also Suozzi v. Brown, 10 Vet. App. 307 (1997) (holding
that "corroboration of every detail [of a claimed stressor]
including the appellant's personal participation" is not
required; rather an appellant only needs to offer independent
evidence of a stressful event that is sufficient to imply his
or her personal exposure). In Pentecost, the veteran
submitted unit records and unit records placing his unit at
the site of the rocket attacks, while in, Suozzi, the veteran
submitted radio logs of transcripts describing the stressful
events involving his unit. No such documentation has been
submitted in this case.
Accordingly, the case is REMANDED for the following:
1. The veteran must be provided
notification (1) of the information and
evidence not of record necessary to
substantiate his claim, (2) of the
information and evidence that VA will
seek to provide, (3) of the information
and evidence that he is expected to
provide, and (4) to request or tell him
to provide any evidence in his possession
that pertains to the claim. These notice
requirements are to be applied to all
elements of the claim.
2. The AMC/RO should prepare a request
for stressor corroboration to be sent to
U. S. Army and Joint Services Records
Research Center (JSRRC) via their mailing
address or through the PIES/Defense
Personnel Records Imaging System (DPRIS)
interface; and to the National Archives
and Records Administration (NARA). The
request is to include the veteran's full
name and Social Security number (SSN); a
description of the stressful event -
when, during a firing mission, a round of
ammunition exploded in a tube, knocking
the veteran into a snow bank, rendering
him unconscious "for several hours"
during a field exercise in Grafonver,
Germany in beginning January 21, 1983,
when the veteran was assigned to the 83rd
FA BN. Any information received,
including negative responses are to be
associated with the claims folder.
2. The veteran should be scheduled for a
VA psychiatric examination for an opinion
as to whether there is at least a
50 percent probability or greater (at
least as likely as not) that he has PTSD
(under DSM-IV criteria) related to a
verified event in service. The
psychiatrist or psychologist conducting
the examination should be informed that
the veteran's claim as to having been in
the near vicinity of an artillery range
explosion and subsequently receiving
treatment for cold injury to the feet has
been verified. While the examiner may
wish to elicit additional information as
to the veteran's physical proximity to
the verified artillery explosion, any
conclusions as to this matter should be
reconciled with the apparent lack of any
service medical evidence of this event or
any objective medical findings.
All indicated tests and studies are to be
performed. Prior to the examination, the
claims folder must be made available to
the examiner for review of the case. A
notation to the effect that this record
review took place should be included in
the report. Opinions should be provided
based on the results of examination, a
review of the medical evidence of record,
and sound medical principles. All
examination findings, along with the
complete rationale for all opinions
expressed, should be set forth in the
examination report.
3. The veteran must be given adequate
notice of the date and place of any
requested examination. A copy of all
notifications, including the address
where the notice was sent must be
associated with the claims folder. The
veteran is to be advised that failure to
report for a scheduled VA examination
without good cause shown may have adverse
effects on his claim.
4. After completion of the above and any
additional development deemed necessary,
the issue on appeal should be reviewed.
All applicable laws and regulations
should be considered. If any benefit
sought remains denied, the veteran should
be furnished a supplemental statement of
the case and be afforded the opportunity
to respond. Thereafter, the case should
be returned to the Board for appellate
review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).